Supreme Court's bench of Justices B.R. Gavai and K.V. Viswanath set aside Patna HIgh Court's Justice Arun Kumar Jha's order whereby he had recalled his earlier order granting bail in a case from Basantpur, Siwan. The judgement of the apex court was authored by Justice Gavai. The Court observed: "We find that since there was not even an allegation by the Investigating Agency that the appellant has violated any of the conditions which were imposed while granting bail or that he was misusing the liberty granted to him, it was not correct on the part of the learned Single Judge to recall its earlier order granting bail."
The High Court had passed an order on December 8, 2022 in an appeal under Section 14(A)(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the refusal of prayer for bail by the 1st Additional Session Judge-cum-Special Judge, Siwan in connection with a case registered for the alleged offences under Sections 302 and 34 of the Indian Penal Code and Sections 3(2) (v) (s) of the Scheduled Castes and Scheduled Tribes Act. (Prevention of Atrocities) Act, 1989. Mendar Singh, the appellant and other co-accused persons were named as those who committed the murder of her husband in the background of some earlier dispute. The appellant's counsel had submitted that the appellant is innocent and has been falsely implicated in this case. After investigation police submitted a closure report showing the acquisition (accusation) to be untrue. He submitted that on the date of occurrence the appellant was not even present at the place of occurrence, the appellant was attending the tilak ceremony of his sister at a place which was 25 K.M. away from the place of occurrence. The appellant used to live in Delhi for his livelihood and he had come to attend the wedding ceremony of his sister and has been falsely implicated in this case. The appellant has got clean antecedent.
In his order dated December 8, 2022, Justice Jha had observed:"Having regard to the facts and circumstances and submission made on behalf of the parties and further considering the fact that the allegation against the appellant is on suspicion of the informant and there is possibility of false implication and further considering the submission of charge sheet against him and his clean antecedent, the appellant above named is directed to be released on bail". The bail was granted subject to the conditions mentioned in Section 437(3) of the Code of Criminal Procedure and also the conditions. These conditions are:
(i) One of the bailors will be a close relative of the appellant.
(ii) The appellant will remain present on each and every date fixed by the court below.
(iii) In case of absence on three consecutive dates or in violation of the terms of the bail, the bail bond of the appellant will be liable to be cancelled by the court concerned.
(iv) The bail bond of the appellant will be accepted subject to verification of the claim that he is having no criminal antecedent.
In his subsequent order dated February 15, 2023, Justice Jha recorded:"The present petition has been filed for modification of the judgment dated 08.12.2022 passed in Criminal Appeal (SJ) No. 2445 of 2022 on the ground that at the time of hearing of the Criminal Appeal (SJ) No. 2445 of 2022 criminal antecedent of the appellant could not be brought on record due to some mis-communication. However, a condition was put by this Court while granting bail to the appellant that the bail bond of the appellant was to be accepted only after verification of the claim that he was having no criminal antecedent. The learned counsel for the petitioner prays for waiver of the aforesaid condition." The waiver was sough for the condition that "The bail bond of the appellant will be accepted subject to verification of the claim that he is having no criminal antecedent."
The order reads:"Having considered the submission, I do not think the reason of mis-communication or inadvertent mistake by the deponent/pairvikar regarding criminal antecedent of the appellant are believable. It appears to be a case of active concealment to get a bail order in favour of the appellant. The appellant was duty bound to mention his criminal antecedent which he failed to bring to the notice of this Court. It amounts to playing fraud with the Court. For the aforesaid reason, I do not find any merit in the modification petition and hence, the same is dismissed. The learned Registrar General is directed to enquire into the matter and after due enquiry fix the responsibility of the person, who committed fraud upon this Court and submit the report within six months."
The order dated August 25, 2023 states that an enquiry report dated August 2, 2023 was been submitted by the Registrar General in a sealed cover, which was opened in presence of the parties in open Court. The enquiry report concluded:"it is apparent that Sri Rajeev Kumar, Deponent in Cr. Appeal (SJ) No. 2445/2022, despite having the knowledge of all Criminal Antecedents of his brother-in-law (Sala), Appellant Mendar Singh @Vijay Singh, did not bring this fact deliberately to the knowledge of the Hon'ble Court. As such, it prima facie appears to be a case of suppression of fact by Rajeev Kumar, Deponent in Cr. Appeal (SJ) No. 2445/2022, in order to get Bail for his brother- in-law Mendar Singh @ Vijay Singh (Appellant) anyhow from this Hon'ble which is punishable under Indian Penal Code."
The order records that the "Registrar General failed to take notice that everything was done by the deponent for the benefit of the appellant and from events which started with filing of Cr. Appeal (SJ) No.2445 of 2022 lead to inescapable conclusion about the complicity of the appellant along with others. It was the appeal of the appellant Medan Singh @ Vijay Singh and any submission made in the appeal and modification petition would be treated as his submission and not only of ‘Pairvikar’. It appears from the report of learned Registrar General, the conduct of learned counsel, Mr. Ashok Kumar, is certainly reproachable. The manner in which he conducted himself leaves much to desire. The learned counsel is first and foremost an officer of this Court and such type of behaviour and the manner of conduct of his business is at least not expected from him. Still, the learned counsel for the appellant, Mr. Ashok Kumar could be given the benefit of doubt that, perhaps, he was not having the information about the criminal antecedent of the appellant."
The order also records:"Registrar General has failed to observe anything regarding functioning and conduct of the Advocate Oath Commissioner, namely, Mrs. Supriya Rani...She has tendered unqualified apology for the mistake and has given full assurance that such type of conduct would not be repeated in future." It observed:"Such type of conduct has been frowned upon by a Coordinate Bench in the matter of Mukesh Kumar and anr. Vs. The State of Bihar (Cr. Misc.No.61989 of 2022) and the Coordinate Bench has issued certain directions to the Oath Commissioner regarding their conduct of business. However, the apology of the learned Oath Commissioner is accepted and she is warned to remain careful in future. It is expected that the learned Oath Commissioner would adhere to the directions issued by the Coordinate Bench."
Notably, during course of enquiry by the Registrar General, the appellant Mendar Singh has filed the instant Cr. Appeal (SJ) No.2307 of 2023 on May 11, 2023 for grant of bail to the appellant.
In his order dated August 25, 2023, Justice Jha concluded:"Since this Court has found a clear case of concealment of criminal antecedents of the appellant by the deponent which was being done for the benefit of the appellant, a cost of Rs.1,00,000/- (One lac) is imposed upon the deponent, namely, Rajeev Kumar and the appellant, Mendar Singh @Vijay Singh for swearing false affidavit and trying to mislead the Court by suppressing facts. The aforesaid cost shall be paid by the deponent in the coffer of Patna High Court Legal Services Committee within a period of eight weeks from the date of uploading of this order. If not paid, the Registry is directed to recover the same by taking appropriate action against the deponent and the appellant in accordance with law."
The order records that "Yogesh Chandra Verma, learned senior counsel submits that the lawyer engaged in this case has no occasion to verify the fact regarding criminal antecedent of the appellant and he has been duped by giving wrong instruction. He has also pointed out about prevailing practice in this Court with regard to filing of the petitions and swearing of the affidavits till the date it has been made mandatory that the affidavits are to be sworn personally by the person before the Oath Commissioner. However, he prays for withdrawal of the present appeal." The final sentence of the order reads: "this appeal is dismissed as withdrawn."
The appeal in the Supreme Court had challenged the judgment and order of Justice Jha dated August 25, 2023, whereby the High Court has recalled its earlier order dated December 8, 2022, vide which the appeal filed by the appellant herein under Section 14A(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was allowed.
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